Sense on Secrecy

Wednesday, August 15, 2007

THE U.S. COURT of Appeals for the 9th Circuit is scheduled to hear arguments today on the Bush administration's attempt to halt two challenges to its warrantless surveillance program. Here's what legal scholars expect: The San Francisco-based court -- a favorite liberal punching bag for the Supreme Court -- will hand down an "anti-administration" decision that allows the cases to move forward. If that happens, government lawyers won't be able to run fast enough to urge the Supreme Court to overturn the ruling.

While the politics of the matter are fairly obvious, what is in serious dispute is how any court should balance a president's legitimate interests in protecting national security programs with a private litigant's right to challenge their legitimacy. At the core of these two cases is the state secrets doctrine, which permits the White House to hold back material it claims would damage national security if revealed. In one, AT&T Corp. is being sued for allegedly collaborating with the government in the warrantless wiretapping and other surveillance programs. The second case involves a now-defunct Muslim charity that contends it was surveilled. The charity claims it has proof of that surveillance in the form of a classified document inadvertently turned over during this litigation. The Justice Department has invoked the state secrets doctrine in both cases and argued for their dismissal, which lower court judges denied. These trial judges should be commended for not rubber-stamping the Justice Department request for secrecy -- as too many lower court judges have done in the past.

The American Bar Association this week passed a resolution calling on judges to take a more active role in these cases, urging them to make a full assessment of the validity of the secrecy claim before disposing of a case. A careful review does not eliminate the possibility that the administration may yet prevail. Another proposal would create a separate and secret court, not unlike the Foreign Intelligence Surveillance Court, to handle cases with national security ramifications. Both measures are worthy of further consideration.

A 9th Circuit ruling couched in soaring rhetoric that gives plaintiffs too much leeway and imposes too heavily on the administration's ability to protect legitimate secrets will surely trigger the interest, if not the ire, of some of the justices. At the same time, the administration's uncompromising approach on state secrets will continue to fuel the search for a practical way to limit the privilege.

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